ZACCARDI & ZACCARDI - [2020] FamCA 964

FAMILY COURT OF AUSTRALIA

ZACCARDI & ZACCARDI

[2020] FamCA 964

FAMILY LAW – PARENTING – Where the child is almost five years old – Where the child has not spent time with the husband since early 2019 – Where the wife and child are at serious risk of harm if the husband knows their location – Where the husband has made threats to kill the wife and her mother – Where the husband has perpetrated family violence against the wife – Where the wife’s location is undisclosed – Where the risk of the husband locating the wife is not ameliorated by supervised time – Where the wife is the child’s primary attachment figure – Orders made for the husband to have no time with the child – Orders for no contact with the child – Where the husband is viewed as a serious risk to both the wife and her mother– Injunctive orders made for the personal protection of the wife.

FAMILY LAW – PROPERTY – Where the husband transferred $764,000 to his friend - Where that money cannot be located – Where the Court did not accept the money was lost – Where the money formed part of the property pool – Where the husband made significantly greater initial contributions – Where the contributions of the husband were assessed as 80 per cent and the wife 20 per cent – Adjustment of 10 per cent to the wife for section 75(2) factors.

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain the husband’s solicitors from continuing to act – Where new representation would prejudice the administration of justice – Where there is urgency in the completion of the proceedings – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 68B, 68C, 79, 90XT, 102NA
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 reg. 27

Tottle Christiansen v Westgold Resources NL [2003] WASCA 224

APPLICANT:

Mr Zaccardi

RESPONDENT:

Ms Zaccardi

INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid Family Law Specialist

FILE NUMBER:

SYC

5365

2017

DATE DELIVERED:

18 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

9, 10, 11, 12 & 13 September 2019,

19, 20, 21& 22 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

9 SEPTEMBER 2019 – 13 SEPTEMBER 2019:

19 OCTOBER 2020 - 22 OCTOBER 2020:

Mr Williams QC
Ms Goodchild

SOLICITOR FOR THE APPLICANT:

9 SEPTEMBER 2019 – 13 SEPTEMBER 2019:

19 OCTOBER 2020 - 22 OCTOBER 2020:

The Norton Law Group

Ark Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Gillies SC

SOLICITOR FOR THE RESPONDENT:

Dimocks Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid Family Law Specialist

Orders

IT IS ORDERED
PARENTING

That the wife have sole parental responsibility for the child X born … 2016 (“the child”).
That the child live with the wife.
That the child have no contact with the husband.
That the wife Ms Zaccardi be permitted to remove the child from the Commonwealth of Australia with no restriction and without the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FamCA 964
Decision Date: 18 November 2020

CaseChat Overview and Summary

In the matter of *Zaccardi & Zaccardi*, Rees J of the Federal Circuit and Family Court of Australia considered parenting, property, and procedural applications. The dispute involved a wife and child who were at serious risk of harm from the husband, who had a history of family violence and threats to kill. The wife’s location was undisclosed, and the husband had not seen the child since early 2019. The wife also sought to restrain the husband’s solicitors from acting for him.

The court was required to determine the appropriate parenting orders given the significant risk of harm to the wife and child, the husband's history of violence, and the wife's status as the child's primary attachment figure. Additionally, the court had to address the division of property, specifically concerning a substantial sum of money transferred by the husband to a friend that could not be located, and the husband's significantly greater initial financial contributions. Finally, the court considered whether the husband's solicitors should be restrained from continuing their representation due to potential prejudice to the administration of justice.

Regarding parenting, the court found that supervised time would not ameliorate the risk to the child and ordered that the wife have sole parental responsibility, that the child live with the wife, and that the child have no contact with the husband. The wife was permitted to remove the child from Australia without the husband's consent, and the husband was restrained from removing the child from Australia. The court also made extensive injunctive orders for the personal protection of the wife, including restraining her from assault, harassment, and approaching within 50 metres of her. In relation to property, the court did not accept that the husband's transferred funds were lost and included them in the property pool. The husband's initial contributions were assessed at 80% and the wife's at 20%, with a further 10% adjustment to the wife for section 75(2) factors. The court ordered the distribution of funds from a controlled monies account and a superannuation interest to the wife, and a lump sum payment from the husband to the wife. The application to restrain the husband's solicitors was dismissed due to the urgency of the proceedings and the potential prejudice to the administration of justice if new representation were required.

Orders

Orders of the court

IT IS ORDERED

PARENTING

That the wife have sole parental responsibility for the child X born … 2016 (“the child”).

That the child live with the wife.

That the child have no contact with the husband.

That the wife Ms Zaccardi be permitted to remove the child from the Commonwealth of Australia with no restriction and without the consent of the husband.

That subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (Cth), the father, Mr Zaccardi born on … 1987, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X, born on … 2016 from the Commonwealth of Australia; AND, subject to Order 4, IT IS REQUESTED that the Australian Federal Police give effect to these Orders by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal or all parties consent to such removal.

That pursuant to section 68B(1)(b), (c), and (d) of the Family Law Act 1975 (Cth) Mr Zaccardi be and is hereby restrained from:

(a) Assaulting, harassing or molesting Ms Zaccardi (“the wife”) in any way;

(b) Forwarding, sending, initiating or sustaining any communication in any form with the wife;

(d) Entering or being within 50 metres of the wife’s home or any place where the wife works.

That pursuant to section 68C of the Family Law Act 1975 (Cth), Order 6 is an injunction for the personal protection of the wife.

That pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person (Mr Zaccardi) against whom the injunction is directed has breached the injunction by:

(a) causing, or threatening to cause, bodily harm to the protected person; or

(b) harassing, molesting or stalking that person;

the police officer may arrest Mr Zaccardi without warrant.

That the operation of Order 6 is suspended during any period in which an Apprehended Domestic Violence Order or a Provisional Apprehended Domestic Violence Order made pursuant to the Crimes (Domestic and Personal Violence Act 2007 (NSW) is in force for the protection of the wife from Mr Zaccardi.

PROPERTY

10.

That the husband and the wife do all things required to distribute to the wife the whole of the money in the Controlled Monies Account in their joint names with account number #…58.

11.

That in accordance with section 90XT(1)(b) of the Family Law Act 1975 (Cth):

(a) The non-member spouse (or such other person to whom a splittable payment is payable mentioned in section 90XE of the Act) is entitled to be paid the specified amount out of the interest of Mr Zaccardi (“the Applicant”) in Super Fund 1 (“the Fund”) of which N Pty Limited is the Trustee;

(b) The entitlement of the Applicant in the Fund is correspondingly reduced by force of this Order; and

12.

That Order 11 has the effect from the operative time and the operative time is the beginning of the fourth business day after service of a sealed copy of this Order on the Trustee.

13.

That the trustee of the Fund shall do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate the entitlement awarded to the non-member spouse in Order 11 above, in accordance with the requirements of the Act;

(b) Pay the non-member spouse’s entitlement whenever the Trustee makes a splittable payment from the member’s superannuation interest in the Fund.

14.

That having been accorded procedural fairness in relation to the making of these Orders, Orders 11-14 bind the Trustee of the Fund.

15.

That prior to the parties serving these Orders on the Trustee of the Fund and within seven (7) days of the making of these Orders, the Applicant shall do all things necessary to cause any other superannuation interest that the Applicant may hold in any other superannuation fund to be rolled over into his respective fund with Super Fund 1.

16.

That except as these Orders provide to the contrary the Applicant be restrained by way of injunction from withdrawing, transferring, deducting or rolling-over any interest held in his respective superannuation account with Super Fund 1, until such time as the superannuation splitting provisions provided for within these Orders are effected.

17.

That within one month form the date of these Orders, the husband pay to the wife the sum of $118,557.

18.

That other than as provided in these Orders, each party is solely entitled to any asset in his or her possession.

19.

That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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